Opinion
No. 83-1648
Decided July 18, 1984.
Elections — Zoning — Zoning referendum — Petitions must contain accurate and unambiguous summary of the issue.
APPEAL from the Court of Appeals for Franklin County.
Shelly Sands, Inc., appellant herein, owns a 105.96 acre tract of land upon which it conducted for many years a commercial sand and gravel quarry as a legal non-conforming use. On April 16, 1982, Shelly Sands applied for a change in zoning of 1.603 acres of the tract from Rural Zoning Commission (R) to General Industrial District (GI). As part of its application for rezoning, Shelly Sands stated that the 1.603 acre tract would be used exclusively for processing sand and gravel into asphaltic concrete, in addition to the continuation of sand and gravel quarry operations. Shelly Sands intended to continue to use, and indeed continues to use, the entire tract of land as a sand and gravel quarry, which right would not be affected by the zoning change, whether enforced or not.
Appellant's application for rezoning of the 1.603 acre tract of land was approved. Thereafter, petitions for a zoning referendum were circulated among the electors of the unincorporated area of Hamilton Township where the property is located, and more than a sufficient number of signatures therefor were filed with the county commissioners. The commissioners agreed to submit the issue to the electors for approval or rejection in the next election, finding that the referendum petitions were valid.
Shelly Sands brought an action in the Court of Common Pleas of Franklin County, requesting that the court permanently enjoin the Franklin County Board of Elections from placing the issue on the ballot. The case was submitted to the trial court on a stipulation of facts with accompanying exhibits, and the parties agreed in their stipulation that the only issue before the court was the propriety of the language in the referendum petitions after the words, "Brief Summary of the Proposal," which reads as follows:
"Shelly Sands, Inc., Clay Graham, Asst. Secy., c/o John K. Keller, 52 E. Gay Street, P.O. Box 1008, Columbus, Ohio, is the applicant for a change of zoning for a tract of land containing approximately 1.603 acres, being a portion of a tract containing 105.96 acres, situated in the northwest quadrant of Rohr and Lockbourne Roads, from a Rural District to a General Industrial (GI) District, for the use in the production of asphaltic concrete and a continuation of sand and gravel quarry operation."
The trial court ruled for appellant and issued a permanent injunction against placing the resolution on the ballot, finding that a reasonable petition signer reading the summary could have been misled into believing that the right of Shelly Sands to continue quarry operations on the large tract may have been at issue.
No appeal was taken by the board of elections. However, the intervenor-defendants, circulators of the referendum petitions, appealed to the court of appeals which reversed the trial court and held that the petition was not ambiguous, but even if ambiguous, such ambiguity was de minimis.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Vorys, Sater, Seymour Pease, Mr. John C. Elam, Mr. George L. Jenkins and Mr. David S. Cupps, for appellant.
Messrs. Lucas, Prendergast, Albright, Gibson Newman, Mr. Robert E. Albright and Mr. Richard C. Brahm, for intervening appellees Tigner et al.
The standards for a valid zoning referendum petition have been established by this court in a number of cases. This court has held that the petition must contain an accurate and unambiguous summary of the issue sought to be submitted to the electorate. If the summary is misleading, inaccurate, or contains material omissions which would confuse the average person, the petition is invalid and may not form the basis for submission to a vote. Markus v. Bd. of Elections (1970), 22 Ohio St.2d 197 [51 O.O.2d 277]. We hold that the petition here failed to live up to those standards.
Applying the objective test of Markus to the facts of this case, we hold that the statement of the zoning referendum was confusing and ambiguous to the average person signing the petition, and would tend to mislead such person.
In an analysis of the petition here, we conclude that it was ambiguous and misleading because it failed to apprise the reader of the present zoning status of the land and of the precise nature of the requested change. In this regard, the summary failed to inform the reader that operation of the entire 105.96 acre tract of land as a commercial sand and gravel quarry would continue, irrespective of the results of the referendum, and that the only zoning change sought by Shelly Sands was that which would allow the placement of an asphaltic batch plant on a 1.603 acre tract located in the middle of the 105.96 acres used in the sand and gravel quarrying operation.
As noted in the trial court's decision, the summary is misleading because it conveys the idea that, by signing the petition, electors will be given the chance to determine whether Shelly Sands should continue to use its land for commercial sand and gravel operations. The ambiguity results primarily from the inclusion of language in the summary which states that Shelly Sands was applying for a change of zoning "* * * for the use in the production of asphaltic concrete and a continuation of sand and gravel quarry operation." There was no reasonable basis to include in the language of the petition any reference to "a continuation of sand and gravel quarry operation." This language did not appear in the resolution adopted by the county commissioners and was conceivably added to mislead those readers who were opposed to the continuing operation of the quarry in any form.
The only zoning change sought by the application related to a change of zoning on the 1.603 acre tract of land located in the middle of the larger tract for the purpose of locating an asphaltic batch plant. Shelly Sands' right to continue commercial sand and gravel quarry operations on both the 1.603 acre tract and the larger 105.96 acre tract would be unaffected by the results of any election. Thus, the language of the petition conveys the mistaken impression to the voters of the unincorporated area of Hamilton Township that if they objected to sand and gravel operations in their locality, by signing the petition they would have an opportunity to defeat Shelly Sands' right to continue to operate a commercial sand and gravel quarry.
We hold that the trial court properly concluded that the referendum petition was ambiguous and misleading.
Therefore, the judgment of the court of appeals is reversed.
Judgment reversed.
SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
CELEBREZZE, C.J., and O'NEILL, J., dissent.
O'NEILL, J., of the Seventh Appellate District, sitting for W. BROWN, J.
Unlike the majority, I am unwilling to believe that the so-called average person lacks the ability to comprehend what is, by even the lowest grammatical standards, the unambiguous summary of the proposal which appeared on the instant petitions. In my view, the reasonably intelligent and literate person would not have been misled into believing that the proposed zoning change would affect the entire 105.96 acre tract of land and not solely the 1.603 acre tract. The summary clearly states that the zoning change would affect only the 1.603 acre tract. The court of appeals correctly observed that:
"It is clear from the summary that the change of zoning applied only to the 1.603 acres, which was specifically stated to be a portion of the 105.96 acre tract."
The majority latches on to selected language in the summary which allegedly relates to the 105.96 acre tract and thereby concludes that the entire summary was ambiguous. That conclusion does not at all follow. The proposed zoning change related entirely to the 1.603 acre tract and to no other portion of the land. Thus, the language "for the use in the production of asphaltic concrete and a continuation of sand and gravel quarry operation" likewise relates to the small tract which would be affected by the zoning change.
Accordingly, I would affirm the judgment of the court of appeals, dissolve the stay, and allow the election to proceed.
O'NEILL, J., concurs in the foregoing dissenting opinion.